« 이전계속 »
not extend to accounts stated. It must be a direct concern of trade; liquidated demands, or bills and notes, which are only traced to the trade of merchandise are too remote to come within this description. When the statute contains no exception, as a general rule, the courts will not make any.?
There has been held to be an implied suspension of such statutes during the late civil war as to citizens of different states between which intercourse was interrupted, on the ground of paramount necessity, and limited by such necessity. Being statutes of repose, they are not regarded in modern times with disfavor; and are therefore not to be defeated by undue strictness of construction. Heath, J., said these statutes ought to receive a strict construction. But this has not been the uniform expression of English judges. Dallas, C. J., said: “I cannot agree in the position that statutes of this description ought to receive a strict construction; on the contrary, I think they ought to receive a beneficial construction with a view to the mischief intended to be remedied.” 6 Like views have been expressed in this country. “The statute of limitations is entitled to the same respect with other statutes and ought not to be explained away."? Such statutes were not enacted to protect persons from claims fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. Story, J., in Bell v. Morrison, said: “It is a wise and beneficial law, not designed inerely to raise a presumption of payment of a just debt from lapse of time, but to afford security against stale demands after the true state of the transaction may have been
i Ramchander Hammond, 2 Charter Oak Ins. Co. 64 Mo. 380; John. 200.
Stiles v. Easley, 51 Ill. 275; Mixer v. 2 Kilpatrick v. Byrne, 25 Miss. 571; Sibley, 53 id. 61; Coleman v. Holmes, Semmes v. Hartford Ins. Co. 13 44 Ala. 124. Wall. 158; Warfield v. Fox, 53 Pa. 4 Toll v. Wright, 37 Mich. 93; PalSt. 382; The Sam Slick, 2 Curtis, C. mer v. Palmer, 36 id. 487. C. 480; Wells v. Child, 12 Allen, 333; 5 Roe v. Ferrars, 2 B. &. P. at p. 547. Dozier v. Ellis, 28 Miss. 730; Favorite 6 Tolson v. Kaye, 3 Brod. & B. at v. Booher, 17 Ohio St. 548; Pryor v. Ryburn, 16 Ark. 671; Howell v. i Clementson v. Williams, 8 Cranch, Hair, 15 Ala. 194; Baines v. Will- 72. iams, 3 Ired. L. 481.
8 Id. 3 Levy v. Stewart, 11 Wall. 244; 91 Pet. 351. Ross v. Jones, 22 Wall. 576; Smith v.
forgotten, or be incapable of explanation by reason of the death or removal of witnesses. It has a manifest tendency to produce speedy settlements of accounts and to suppress those prejudices which may rise up at a distance of time and baffle every honest effort to counteract or overcome them." I Such statutes rest upon sound policy and tend to the peace and welfare of society. The courts do not now, unless compelled by the force of former decisions, give a strained construction to evade their effect. This class of statutes has a harsh effect on the creditor, which consideration leads to a strict construction ; and a debtor who takes advantage of long forbearance to be utterly discharged on his own account has little right to favor; but all persons are not provident enough to have indestructible evidence of all their transactions, and it is for the general good that a period be fixed after which there is an arbitrary exemption from liability. In this sense these statutes are remedial, to afford protection against stale claims, after a period sufficient to the diligent, and when in the majority of instances a defending party would be placed at a disadvantage by reason of the delay.
8 369. Limitations as to new trials and appeals.- Provisions which limit in point of time the right to move for a new trial, or to take an appeal, are construed with strictness in favor of the party desiring a review, when the time is to be computed from notice of the judgment to be given by the opposite party. The right of appeal is general and positive, and as statutes of limitation are in restraint of that right they are, as already said, to be construed strictly. Although it be admitted that notice means knowledge, it by no means follows that knowledge or information of any kind will suffice — notice to limit the right in question must be given. This implies a positive act of the party in whose favor the judgment has been rendered. “It is highly proper,” says Savage, C. J., " that such should be the practice. Notice in such a case ought not to depend upon casual information or an advertisement in the newspapers. Such notice certainly cannot be considered notice given by one party to the other. It is clear to my mind
1 See Willison v. Watkins, 3 Pet. 43, 54.
2 McCluny v. Silliman, 3 Pet. 270; United States v. Wilder, 13 Wall. 254.
3 Pease v. Howard, 14 John. 479.
that the legislature intended a regular, formal, written notice." I Where an appeal was required to be taken within “thirty days after written notice of the judgment or order shall have been given to the party appealing,” it was held that unless, after the judgment or order and its entry, the party has some written notification thereof by the act of the prevailing party or his attorney, the time to appeal continues without limitation. The party may acquire a knowledge of the order, he may examine it on the files of the court or on its records, or procure a copy of it from the clerk; but as a limitation of the time to appeal, knowledge so acquired will be wholly inoperative. Such a notice must be given, though the order or judgment appealed from was entered by the appellant himself; 3 or though he was in court and heard the judgment pronounced and even asked for a stay of proceedings. Service of a report containing a recital of the judgment or order will not be sufficient.
$ 370. Statutes interfering with legitimate industries, etc.— All statutes for interference with legitimate industries or the ordinary uses of property, or for its removal or destruction for being a nuisance or contributory to public evil, are treated with a conservative regard for the liberty of the citizen in his laudable business, and in the innocent enjoyment of his possessions, and generally the rights of property. Such interferences are cautiously justified on principles of the common law, and only in cases of imperative necessity, or under valid statutes plainly expressing the intent."
1 Jenkins v. Wild, 14 Wend. 539, 545. Gray, 359; Austin v. Murray, 16
2 Fry v. Bennett, 16 How. Pr. 402; Pick. 121; Welch v. Stowell, 2 Doug. Valton v. National Loan, etc. Co. 19 (Mich.) 332; Walker v. Board of id. 515.
Public Works, 16 Ohio, 540; Wyne3 Rankin v. Pine, 4 Abb. Pr. 309. hamer v. People, 13 N. Y. 378; Port 4 Biagi v. Howes, 66 Cal. 469. Wardens of N. Y. v. Cartwright: 4
5 Matter of N. Y. Cent. etc. R. R. Sandf. 236; Stevens v. State, 2 Ark. Co. 60 N. Y. 112.
291; Thorpe v. R. & B. R. R. Co. 27 6 Mayor, etc. of New York v. Lord, Vt. 140; Miller v. Craig, 11 N. J. Eq. 18 Wend. 128; Respublica v. Spar- 175; Bartemeyer v. Iowa, 18 Wall. hawk, 1 Dall. 357; Russell v. Mayor, 129, 137; Mugler v. Kansas, 123 U. S. etc. 2 Denio, 461, 474.
623, 661; Watertown v. Mayo, 109 i Re Jacobs, 98 N. Y. 98; People v. Mass. 315, 319; Slaughter House Marx, 99 id. 377; Munn v. Illinois, 94 Cases, 16 Wall. 36; State v. Gilman, 33 U. S. 113; Brigham v. Edmunds, 7 W, Va. 146; 41 Alb. L. J. 24; Hughes
$ 371. Statutes creating liability.— If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed. A statute, even when it is remedial, must be followed with strictness, where it gives a remedy against a party who would not otherwise be liable. The courts will not extend or enlarge the liability by construction; they will not go beyond the clearly expressed provisions of the act. Statutes which create a liability in favor of “the widow and next of kin” of a person whose death has been caused by negligence are of this class. Actions founded on those statutes must strictly conform to them. Such an action cannot be given by implication. The relief or remedy provided is not extended to any other persons than those mentioned in the statute. When given to a “child,” an illegitimate has been held in England not within the statute, though the case was for negligently causing the mother's death;? but it has been held otherwise in this country. These statutes are confined to pecuniary damages, though it has been said that the word “damages” is not taken in a very strict sense. Every element is excluded which is not in
v. Chester, etc. Ry. Co. 8 Jur. (N. S.) 5 Barrett v. Dolan, 130 Mass. 366 ; 221; S. C. 3 De Gex, F. & J. 352; S. C. 39 Am. Rep. 456. Mayor, etc. v. Davis, 6 W. & S. 269; 6 Green v, Hudson R. R. R. Co. 32 Commonwealth v. Sylvester, 13 Allen, Barb. 25; Warren v. Englehart, 13 247; Shiel v. Mayor, etc. 6 H. & N. Neb. 283; Dickins v. N. Y. Cent. R. 796; Wiener v. Davis, 18 Pa. St. 331; R. Co. 23 N. Y. 159; Woodward v. McGlade's Appeal, 99 Pa. St. 338; R’y Co. 23 Wis. 400. See Houston, Cooley's Const. Lim. ch. XVI. etc. R’y Co. v. Bradley, 45 Tex. 171.
1 Cohn V. Neeves, 40 Wis. 393; 7 Dickinson v. Northeastern R’y Co. Steamboat Ohio v. Stunt, 10 Ohio St. 2 H. & C. 735; Blake v. Midland Ry 582; Moyer v. Penn. Slate Co. 71 Pa. Co. 10 L. & Eq. 437; Gibson v. MidSt. 293 ; Lane's Appeal, 105 id. 49; land Ry Co. 15 Am. & Eng. R. R. O'Reilly v. Bard, id. 569; Hollister Cas. 507; 2 Ont. 658. · See Gardner v. Hollister Bank, 2 Keyes, 245; Mat- v. Heyer, 2 Paige, 11. ter of Hollister Bank, 27 N. Y. 383. 8 Muhl's Adm'r v. Mich. Southern
2 Chicago, etc. R. R. Co. v. Sturgis, R. R. Co. 10 Ohio St. 272. 44 Mich. 538; Steamboat Ohio v. 9 Tilley v. Hudson R. R. R. Co. 24 Stunt, 10 Ohio St. 582.
N. Y. 474; Penn. R. R. Co. v. Keller, 3 Detroit v. Putnam, 45 Mich. 263; 67 Pa. St. 300; Union Pac. R. R Co. Detroit v. Chaffee, 70 id. 80.
v. Dunden, 31 Am. & Eng. R. R. Cas. 4 Telfer v. Northern R. R. Co. 30 N. 88; S. C. 37 Kan. 1; Carroll v. Ma J. L 188, 209; Hayes v. Phelan, 4 Pac. R. R. Co. 26 Am. & Eng. R. R Hun, 733; Galveston, etc. R. R. Co. v. Cas. 268; S. C. 88 Mo. 239; St. LawLe Gierse, 51 Tex. 189.
rence, etc. R. R. Co. v. Lett, 26 Am.&
cluded in the meaning expressed by “pecuniary damages. The South Carolina statute does not contain the restrictive word“ pecuniary” to limit damages in such cases, and gives a broader scope of recovery. Though the action is given for the benefit of the widow and next of kin, the statute is not construed so strictly as to be limited to cases where there are both widow and next of kin. Nor are the next of kin required to be so nearly related as to create any duty of sustenance, support or education. Statutes allowing costs, it was ruled at an early day, should be taken strictly, as being a kind of penalty. This reason is not strictly correct. Costs are compensatory to the prevailing party; they are allowed him to make his remedy more adequate. The liability to pay them is created by statute, because the party so made liable has furnished the occasion for incurring these costs. The obligation extends no further than it is plainly declared by the authority which creates it. The cases are numerous, but they contain very little discussion as to the rule of construction. The allowance of costs turns on the interpretation of the terms of the statutes and the intention deduced therefrom,— they are strictly construed; and neither costs nor salaries can be given Eng. R. R. Cas. 454; Telfer v. Northern 24 Md. 271; Baltimore, etc. R. R. Co. R. R. Co. 30 N. J. L. 188; Little Rock, v. Trainor, 33 id. 542; Johnson v. Chietc. R. R. Co. v. Barker, 39 Ark, 491. cago, etc. R. R. Co. 64 Wis. 425 ; S. C.
1 Id. ; Searles v. Kanawha, etc. R. R. 25 Am. & Eng. R. R. Cas. 338. Co. 37 Am. & Eng. R. R. Cas. 179; Petrie v. Columbia, etc. R. Co. 35 S. C. 32 W. Va. 370; Cleveland, etc. Am. & Eng. R. R. Cas. 430; S. C. 29 R. R. Co. v. Rowan, 66 Pa. St. 393, 399; S. C. 303. See Beeson v. Green MountPenn. R. R. v. Butler, 57 id. 335, 338; ain G. M. Co.57 Cal. 20; Little Rock, Mo. Pac. R. R. Co. v. Lee, 35 Am. & etc. R'y Co. v. Barker, 39 Ark. 491. Eng. R. R. Cas. 364; S. C. 70 Tex. 496; 3 McMahon v. Mayor, etc. 33 N. Y. Gulf, etc. Ry Co. v. Levy, 12 Am. & 642, 647. Eng. R. R. Cas. 90, 93; Baltimore, etc. 4 Tilley v. Hudson R. R. R. Co. R. R. Co. v. Hauer, id. 149; S. C. 60 24 N. Y. 474; Galveston, etc. R. R. Co. Md. 449; North Chicago Rolling Mills v. Kutac, 37 Am. & Eng. R. R. Cas. Co. v. Morrissey, Adm'r, 18 Am, & 470; S. C. 72 Tex. 643; Petrie v. CoEng. R. R. Cas. 47; S. C. 111 III. 646; lumbia, etc. R. R. Co. supra; Railroad Bradburn v. Great W. R’y Co. L. R. Co. v. Barron, 5 Wall. 90; Baltimore, 10 Ex. 1; Catawissa R. R. Co. v. Arm- etc. Co. v. Hauer, 12 Am. & Eng. R. R. strong, 52 Pa. St. 282; Kansas Pac. R. Cas. 149, 155; S. C. 60 Md. 449. See R. Co. v. Lundin, 3 Colo. 94; Macon, Pittsburgh, etc. R. R. Co. v. Vining's etc. R. R. Co. v. Johnson, 38 Ga. 409; Adm'r, 27 Ind. 513. David v. Southwestern R. R. Co. 41 id. 5 Cone v. Bowles, 1 Salk. 205. 223; Baltimore, etc. R. R. Co. v. Kelly,